Moores v. Moores

• Citation: 59 P. 327,36 Or. 261
• Parties: MOORES v. MOORES et al.
• Decision Date: 18 December 1899
• Court: Supreme Court of Oregon

59 P. 327

36 Or. 261

MOORES v. MOORES et al.

Supreme Court of Oregon

December 18, 1899

Appeal from circuit court, Marion county; H.H. Hewitt, Judge.

Suit by A.N. Moores against Ross E. Moores and others, as joint executors of Ellen L. Moores, deceased. There was a decree in favor of plaintiff, and defendants appeal. Dismissed.

D.C Sherman, for appellants.

J.A Carson, for respondent.

MOORE J.

This is a motion to dismiss an appeal. Plaintiff commenced a suit to determine an adverse claim to lots numbered 1 and 2 and the north half of lot No. 6 in block No. 59, in the city of Salem, alleging that he was the owner in fee and in the possession thereof, and that the defendants claimed an estate or interest therein adverse to him, but that such claim was without right. The defendants, having denied the material allegations of the complaint, alleged that at the commencement of the suit, and for a long time prior thereto they were seised in fee and in the actual possession of said lots, and that the plaintiff was not, at the commencement of the suit, nor had he at any time been, in the actual possession of said property, or any part thereof, by himself or tenant. The answer not having set out the origin, nature, or character of the defendants' adverse interest or estate in these lots, the court below for that reason decreed, upon the pleadings, that plaintiff was the owner in fee and in the possession of the premises, and that neither of the defendants had any estate, right, title, or interest therein, from which decree they appeal.

It appears from plaintiff's affidavit, which is uncontroverted, that, after the appeal was perfected, defendants caused a workman in plaintiff's employ, engaged in building fences on these lots, to be arrested upon a charge of willful trespass, but upon trial he was acquitted, whereupon plaintiff commenced an action against the defendants to recover possession of the lots, and, a trial being had, judgment was given that he was the owner and entitled to the immediate possession thereof. From this judgment no appeal was taken, and, the time limited therefor having expired, and defendants having paid the costs and disbursements of the action, plaintiff's counsel contend that the judgment in the action and its satisfaction terminated the controversy in the original suit, and, this being so, the appeal presents only a moot question to be considered. In an action to recover the possession of real property the judgment therein is conclusive as to the estate in such property, and the right to the possession thereof, so far as the same is thereby determined, upon the party against whom it is given. Hill's Ann.Laws, § 329; Hill v. Cooper, 8 Or. 254; Barrell v. Trust Co., 27 Or. 77, 39 P. 992. At the common law the issue tried in an action of ejectment was the right of possession only, and the judgment conferred no title upon the party in whose favor it was given, and, not being final as to the title, it was always in the power of the party failing, whether plaintiff or defendant, to bring a new action; and this is still the rule in the absence of a statute changing it. Tyler, Ej. 592. It will be seen that our statute makes the judgment in such actions equivalent to a conveyance of the interest which the losing party had in the premises at the time the judgment was rendered, and it was admitted upon the argument of the case at bar that the defendants had not acquired any other estate since the rendition of the judgment. If, after perfecting the appeal, the defendants had voluntarily conveyed all their interest in these lots to plaintiff, it is certain that the transfer of such estate and right of possession would have terminated the controversy. Cleveland v. Chamberlain, 1 Black. 410, 17 L.Ed. 93.

It remains to be seen whether the title which plaintiff secured by coercion can be relied upon as a settlement of the controversy involved in this suit. In Edwards v Perkins, 7 Or. 149, it was held that a party voluntarily paying a judgment rendered against him is not thereby precluded from prosecuting an appeal therefrom. The reason assigned for the conclusion there reached was based upon the fact that, unless the undertaking on appeal stipulated for the payment of the judgment, if affirmed, the respondent, notwithstanding the appeal, could enforce it, and the payment was simply another mode of effecting the purpose of such undertaking. Mr. Justice Boise, speaking of the rights of the appellant, in rendering the decision, says, "We think he is in no worse position from having paid the judgment voluntarily than if he had settled the execution with costs." In Manufacturing Co. v. Rasey, 69 Wis. 246, 34 N.W. 85, it is held that, in order to justify the supreme court in dismissing an appeal on the ground that the litigation is settled by payment of the judgment, the evidence must be clear and conclusive that the payment was voluntary and with a view to such settlement. The...